Making the Case for Marriage: Representing DOMA in Court

A Decisive Record: DOMA passed in 1996 with overwhelming majorities in both houses of Congress and was signed by President Clinton. Nearly 40 states have enacted state-level DOMAs, and 31 have embraced traditional marriage in their state constitutions. No state’s voters have voted to the contrary.

Defending Marriage, Protecting States: DOMA has two core provisions. First, DOMA defines the words marriage, spouse, husband, and wife wherever they appear in the U.S. Code as referring only to the union of a man or a woman. Second, DOMA defends the right of each state not to be forced to accept the redefinition of marriage in a handful of other states as a result of state court decisions or laws (e.g., Massachusetts).

Obama Justice Department Fails to Defend Law

End of the Charade: On February 23, Attorney General Eric Holder sent a letter to Congress informing it that the Obama Administration will no longer defend DOMA in federal court. The decision to drop legal defense of DOMA was made by President Obama after a widely criticized half-hearted defense by the Justice Department to date.

Bad Precedent: It is well-established policy of the Justice Department to defend a federal statute unless no reasonable argument may be made in its defense. By abandoning DOMA in court, the Obama Administration is asserting that there is no reasonable legal argument for defending marriage as the union of one man and one woman. This fits a pattern of advocates for redefining marriage portraying defenders of traditional marriage as irrational bigots.

Congress Needs to Act to Defend DOMA in Court

DOMA Needs Legal Defense, Not Re-Enactment: President Obama’s abandonment of DOMA means Congress needs a new lawyer in federal court. The Justice Department says it will notify the federal courts of its desire to allow Congress to defend DOMA. This does not mean Congress needs to vote again on DOMA. It does mean that Congress needs to act to make sure DOMA has an effective and aggressive defense in court.

Congress Needs Representation in Court: More than this particular law is at stake. Congress needs to act to defend its lawmaking authority. Congress needs to defend its prerogatives as the legislative branch. DOMA is good law and the status quo.

The Marriage Differential Needs Highlighting: The Obama Administration has cast marriage aside and demeaned the views of most Americans as irrational. Congress has the opportunity to side with Americans by ensuring that marriage is defended in court. Restoring government’s proper deference for this pre-political institution is an appropriate next step as new leadership responds to Washington’s recent chastening for ignoring the wishes of voters.

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